Dunbar v. Humboldt Bay Municipal Water Dist.

• Decision Date: 19 September 1967
• Citation: 62 Cal.Rptr. 358,254 Cal.App.2d 480
• Court: California Court of Appeals Court of Appeals
• Parties: Edwin G. DUNBAR, Plaintiff and Appellant, v. HUMBOLDT BAY MUNICIPAL WATER DISTRICT, Defendant and Respondent. Civ. 11441.

Page 358

62 Cal.Rptr. 358

254 Cal.App.2d 480

Edwin G. DUNBAR, Plaintiff and Appellant, v. HUMBOLDT BAY MUNICIPAL WATER DISTRICT, Defendant and Respondent.

Civ. 11441.

Court of Appeal, Third District, California.

Sept. 19, 1967.

Rehearing Denied Oct. 19, 1967.

Hearing Denied Nov. 15, 1967.

Mathews & Traverse, by Francis B. Mathews, Eureka, for plaintiff-appellant.

Mitchell & Henderson, by Michael Hill, Eureka, for defendant-respondent.

VAN DYKE, Associate Justice pro tem.

This is an appeal from an action in inverse condemnation. Plaintiff, appellant here, owns 40 acres of land in Trinity County across which runs the Mad River, a non-navigable stream. The river approximately bisects the land of appellant from east to west. He has access to the north portion by a public road. His access to the south portion is by fording the river. The property in common with much of the property in the general area is suitable for summer residences for vacation purposes and has little value otherwise. On that portion of his land lying south of the river appellant has constructed a summer home. During the summer months appellant forded the river without difficulty to reach his home from the public road. He was able to do this with an ordinary passenger car because during the summer months the flow was so diminished that the depth where appellant customarily forded the river was reduced depths varying from 4 inches to 9 inches and presented no impediment to easy crossing. This was the situation when respondent district built a dam, known as Ruth Dam, across the river about one-half mile upstream from appellant's property and thereby partially impounded the flow of the river for the purpose of using water far downstream below appellant's land for district purposes.

The result of impounding the water in the reservoir and its release during late spring, summer and early fall was to increase the natural flow and to make crossing practically impossible for passenger vehicles. During these months the augmented stream is from 13 to 20 inches deep at appellant's ford. In order to gain access to his residence on the south side of the river, appellant purchased a specially adapted four-wheel drive vehicle with which he was and is able to use the ford.

The trial court made findings which may be summarized as follows: Plaintiff is the owner of a parcel of real property, consisting of 40 acres more or less. The only access by motor vehicle which plaintiff has had to his property situated on the south side of the river was and now is to ford the river. Prior to the construction of the Ruth Dam, at the point of plaintiff's crossing, the natural flow of water between approximately the middle of May of each year until the middle of November reached the level of between 4 inches and 9 inches. As a consequence of the construction of the dam by defendant, the level of the river at plaintiff's crossing has been caused to rise during said months to a depth ranging from 13 to 20 inches. This raising of the level of flow has made it difficult and hazardous for plaintiff to drive a conventional automobile across the stream. During the summer months from mid-May to mid-November, prior to the construction of the dam, plaintiff was able to cross the river to his property by passenger-type automobile. By reason of the construction, maintenance and operation of the dam by defendant, the access of the plaintiff has been and will hereafter be impaired. Plaintiff's property has thereby suffered a diminution in value. But plaintiff's property has derived special benefits from the construction of the dam in that since the dam was completed plaintiff's property has been given increased protection against floods, his right of access during the months from November 15 to May 15 of the year has improved, and the swimming and fishing on his property has improved because of the year-round presence of a flow of water in the river. The value of plaintiff's property has been increased by reason of said special benefits. The increment in value from said special benefits exceeds the diminution in value hereinabove found.

As a conclusion of law the court adjudged that plaintiff should take nothing from defendant.

Appellant contends that he received no special benefit by reason of the maintenance and operation of the dam; that in respect to special benefits the evidence does not support the findings; and that in view of the court's finding that the value of his property has been diminished, the judgment in turn is not supported. With this contention we agree.

We may take judicial notice of the existence and general geographical features of the Mad River and in doing so may resort to appropriate books or documents of reference. (Code Civ. Proc., sec. 1875 (now Ev.Code, sec. 452); Gray v. Reclamation District No. 1500, 174 Cal. 622, 626, 163 P. 1024.) We take the following from 'A Preliminary Evaluation of the Effect of the Ruth Dam Project on Fisheries of the Mad River,' dated June 1957, as revised February 1958, prepared by the California Fish and Game Commission. The Mad River drains a total of 496 square miles. It is estimated that the main annual runoff is 925,500 acre-feet. Instantaneous discharges as measured near Arcata at the lower end of the drainage have varied from a high of 52,200 second-feet to a low of 17 second-feet. Occasionally the entire flow in sections near the mouth is under the gravel, leaving dry stretches of channel. Precipitation and runoff are high during the winter and spring months but runoff is quite low in the late summer and fall. The Ruth Dam site is situated 79 miles above the mouth of the river. The river has an approximate total length of 90 to 100 miles. Water developed at Ruth Dam is released downstream and diverted by a low dam at Essex, 7 miles above the mouth of the stream. The Ruth Dam will control the runoff from only 25 percent of the entire stream basin. The river is a major fish production stream and supports runs of anadromous salmon and steelhead. A sandbar closes the mouth of the river during periods of low flow in most years. Anadromous fish have access to only portions of the Mad River Basin. Sweasy Dam, 17 miles above the stream mouth, is provided with a fish ladder, and steelhead and both species of salmon spawn in the stream above it. About 24 miles above Sweasy Dam is a two-mile section of roughs, consisting of large boulders in the channel, with a 25-foot fall at its head. This fall marks the limit of anadromous fish migration.

The Mad River is nonnavigable and hence appellant owns the land under the flow of the stream. The right to use a natural channel as a conduit for artificial flow, as respondent is doing, is well established so long as such use does not interfere with the rights of others. If such use does interfere, then the damage caused is compensable. (52 Cal.Jur.2d, Waters, sec. 614, p. 236 et seq.; Stevens v. Oakdale Irrigation Dist., 13 Cal.2d 343, 352, 90 P.2d 58; Podesta v. Linden Irrigation Dist., 141 Cal.App.2d 38, 296 P.2d 401.)

Since, as the court found, the increased flow of the stream across plaintiff's property damaged his land and diminished its value, the loss thus suffered was compensable in this action. (51 Cal.Jur.2d, Waters, sec. 111, p. 577; Podesta v. Linden Irrigation Dist., supra.) Therefore, according to the court's findings, appellant was entitled to compensation for the diminution in value of his property so caused. However, as noted, the court found that appellant's property derived special benefits from the construction, maintenance and operation of Ruth Dam and that these special benefits increased the value of his land more than the respondent's invasion had lowered that value.

Special benefits are only such as result from the mere construction of the improvement and are peculiar to the property which has been damaged. (Beveridge v. Lewis, 137 Cal. 619, 67 P. 1040, 70 P. 1083, 59 L.R.A. 581; Los Angeles County v. Marblehead Land Co., 95 Cal.App. 602, 273 P. 131; Podesta v. Linden Irrigation Dist., supra.) The burden of proof as to the existence and effect of such benefits was on respondent. The distinction between general and special benefits, which latter species of damage alone can be set off against damage incident to a taking or damaging of property through the exercise of the power of eminent domain, is...